minimise exposure to stress claimsTackling stress

To reduce the risk of claims from employees for stress-related conditions, employers must be aware of their responsibilities. Judgements in recent years can help.

For example, it is settled law that for an employer to bear liability for an injury caused by stress at work the injury must have been reasonably foreseeable. The relevant legal test was set out in the 2001 case of Garrett v London Borough of Camden. In that case Lord Justice Simon Brown summarised the position to good effect:

“Many, alas, suffer breakdowns and depressive illnesses and a significant proportion could doubtless ascribe at least some of their problems to the strains and stresses of the work situation: be it simply overworking, the tension of difficult relationships, career prospect worries, fears or feelings of discrimination or harassment, to take just some examples. Unless, however, there was a real risk of breakdown, which the claimant’s employers ought reasonably to have foreseen and they ought properly to have averted, there can be no liability.”

Take employees’ action at face value

The Court of Appeal’s subsequent decision in 2002 in Sutherland v Hatton provided guidance on an employer’s responsibility towards its employees in respect of personal injury.

It stressed the need for employers to be vigilant and to look for the tell-tale signs of stress. Employers can assume that an employee can cope with the ‘normal pressures’ of the job. The court also pointed out that although vigilance is important, employers are not expected to be clairvoyants. They are entitled to take employees’ actions at face value.

For example, an employee returning to work after a period of sickness absence, without any further explanation, usually indicates that they are fit to resume work.

The court also said that an employer that offers confidential help in the form of counselling is unlikely to be found in breach of its duty.

Although Sutherland v Hatton set a relatively high threshold for claimants to reach to win stress claims, the recent case of Dickins v O2 called in to question some of the guidance laid out in Sutherland v Hatton. Importantly, it suggested that the threshold may not actually be so high.

Details of the case are instructive. After working for O2 for years, Mrs Dickins was promoted to a role that she found stressful. Her GP suggested that her irritable bowel syndrome was stress-related. In April 2002 she reported her concerns to her employer and said she was not sure how long she could continue at work without being signed off sick. She asked for some time off. Her manager referred this request to HR and suggested that she use the company’s confidential counselling service in the meantime. Dickins was already receiving counselling so she did not do so.

In May 2002 Dickins repeated – to O2 management – her description of her symptoms and disclosed that she was receiving counselling. She reiterated her request for time off. The manager said he would refer her to occupational health. Crucially, this did not happen and shortly after Dickins went off sick, never to return to work. She brought a claim in personal injury.

The Court of Appeal said that O2 had been on notice of an impending breakdown in Dickins’ health since the meeting in April 2002. The breakdown had therefore been reasonably foreseeable. Her manager had been tipped off about the seriousness of her illness by Dickins’ assertion that she was not sure how long she could last at work.

Crucially the court said O2 should have sent Dickins home after the meeting in April 2002, despite the fact she had not been signed off by her GP. It said this was a situation that could only be resolved by management intervention. O2 referred the court to Sutherland v Hatton. The company argued that an employer who offered a confidential advice service, with referral to appropriate counselling or treatment services, was unlikely to be found in breach of duty.

End of her tether

The court clarified the position by stating that the advantage of a confidential counselling service was to enable employees to take advice. Dickins had told her manager that she was “at the end of her tether”. To suggest that an employee seeks counselling will not be an adequate response where they describe severe symptoms, attribute them to stress at work and warn that they do not know for how long they can carry on.

The court awarded Dickins £109,754.

Once an employee has indicated that they are not coping at work there is a need to be proactive and respond to their concerns measures such as making swift referrals to occupational health and allowing time off may help show that an employer is not breaching its duty of care. Employers should be alert to the signs of workplace stress and take prompt action where the signs suggest a serious risk of illness.